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Legal Ethics Question:

Is it ethical to try to admit a document you know is inadmissible, hoping either that the other side will fail to object, or that the judge will rule incorrectly? Is it ethical to try to remove a case to federal court that you know is not removable, hoping that the other players will be asleep at the switch?

Drug and Device Law blog wants to know.

My own view, putting aside the formal rules of professional conduct, is that attorneys' first obligation should be to the integrity of the legal system, and not to their clients' interests. Even so, I'm not sure I'd say "no" to either question, given that a yes answer means that incompetent attorneys who don't realize they are violating the rules would have an advantage over competent attorneys. [And beyond that, with regard to question 1, from a purely evidence law perspective, I'm not sure you can really say that there is such a thing as inadmissible evidence until there is an objection.]

I remember being conflicted when I heard after I left my firm that my clients had won a motion based on an argument I came up with. I told the partner in charge of the case that my argument "should be a loser, but it's the best we can do, and maybe the judge will buy it." The judge did. I was proud of my forensic skills, and happy that I helped my client, but disturbed that the legally "wrong" side won. I suppose that's why I'm better suited to professoring.

Redman:
Turn the questions around:

Is it unethical to lodge an objection to a document you know is admissible?

Is it unethical to oppose an argument which you know is legally sound?
6.16.2009 1:29pm
Barbra:
"putting aside the formal rules of professional conduct"

I don't understand how one could analyse this without such rules.
6.16.2009 1:30pm
Barbra:
With respect to the removal hypo, it seems there is a clear violation of professional conduct rules, given Rule 11.
6.16.2009 1:32pm
Crunchy Frog:
This is why nonlawyers consider "legal ethics" to be an oxymoron, and why lawyers are considered on a par with used car salesmen in intgrity.
6.16.2009 1:34pm
Barbra:
Further, re evidence, in most cases, isn't all probative evidence admissable? So the onus is on the objector to object. (Criminal cases by prosecutor's operating, of course, under a different set of rules/ethics).
6.16.2009 1:37pm
John (mail):
Any document is admissible if its admission is consented to by the parties and the court.

Just because you think an objection to your document would likely be sustained is no reason not to offer the document.

Of course lawyer incompetence in failing to object when an objection would be sustained can sometimes raise constitutional problems, but the lawyer who offered the document is not to blame.
6.16.2009 1:38pm
David M. Nieporent (www):
It's an interesting question; my gut reaction was the same as those of Beck/Herrmann's other correspondents: there's no question that offering the evidence is ethical, but removing a case without a good faith basis that it can be removed (even if late removal is waivable) seems far less ethical.

The latter issue seems to me sort of like a statute of limitations: it's a waivable defense, but at the same time, knowingly bringing a lawsuit past the SoL seems frivolous.



One factor, I suppose, is the burden it places on the adversary. If you offer an obviously-inadmissible piece of hearsay, all your opponent has to do is object. A few seconds' worth of effort. But if you remove improperly, you force him to prepare and file a motion to remand, spending time and money.
6.16.2009 1:39pm
CJColucci:
No trial lawyer who has been around the block objects to something merely because it is objectionable under the rules of evidence. Good lawyers often dispense with foundation objections, let in hearsay to save time rather than force everyone to endure laborious non-hearsay proof of the same point, and the like. Invoking a rule of evidence is an option for the non-proponent of the evidence; the proponent has no duty to anticipate objections.
Practically, someone who repeatedly offers clearly inadmissible evidence in the hope that no one will catch it runs the risk of pissing judges and juries off, but that's tactics, not ethics.
6.16.2009 1:40pm
David Drake:
In Georgia, the only ethical rule possibly implicated is the duty of candor to the tribunal--the duty to disclose controlling legal authority directly contrary to the client's position if opposing counsel fails to bring it to the tribunal's attention. Georgia Rule of Professional Conduct 3.3(a)(3). Rule 3.3(a)(4) is also relevant: you cannot introduce evidence you know to be false.

So I would say that tendering a document you believe to be inadmissible is O.K.--the rules of document admissibility are so opaque that I am not sure I could say that any document that is not a forgery or otherwise false is certainly not admissible.

Although I have not been in a courtroom in a long time, I recall that the propounder of the evidence tenders it and the other side has to object. Because the trial process is very "Slam bang," , I don't think I have a duty to sort through my evidence and spontaneously rule out things I don't think the judge will admit.

However, if you know that the period for removal has passed or removal otherwise is not proper, then you would have the duty to disclose the controlling contrary authority. Since that is the case, you are going to lose either "sua sponte" or if opposing counsel objects, so why even try to remove?
6.16.2009 1:41pm
neurodoc:
I was proud of my forensic skills, and happy that I helped my client, but disturbed that the legally "wrong" side won.
Maybe it was your client's luck that he/she drew a particularly "empathetic" judge.

ethics: When he played for the Knicks, Bill Bradley was known for holding on to opposing players' jersies or shorts, but only when a ref was positioned to see what Bradley was doing. Was high-minded Bill an "unethical" ball player?
6.16.2009 1:44pm
Avatar (mail):
The problem with the "formal rules of professional conduct" in this case is that they clearly state that the lawyer's responsibility is to his client.

Clearly, it's permissible to admit evidence that you know is inconclusive, to misrepresent that evidence, to put on the stand witnesses that you know are perjuring themselves, et cetera. And in some respects, it has to be, in order to safeguard the idea of legal representation in adversarial cases. If you're a criminal lawyer, and you know your defendant client is guilty as sin, it's STILL your responsibility to have him declared "not guilty".

The number of actually-banned practices is small indeed - you can't plan a crime with a defendant, you can't actually forge documents and then admit them into evidence, and so on.

Is it good for the body of law as a whole to have the occasional sharp lawyer pull a fast one on a judge? Not so much, no. But the benefit of defendants (and plaintiffs, for that matter) having access to skilled legal representation almost certainly outweighs the damage done. And it would be extraordinarily hard to craft a rule that punished lawyers for making specious legal or factual arguments on behalf of their clients without creating a disincentive to represent certain clients...
6.16.2009 1:44pm
Bill Mill (mail) (www):

given that a yes answer means that incompetent attorneys who don't realize they are violating the rules would have an advantage over competent attorneys.


Ethics are not about making sure that the ethical have every advantage. Whether incompetent lawyers gain an advantage should not factor into your decision on this matter in any way.
6.16.2009 1:45pm
Downfall:
CJColucci nailed it. If the other party should have objected to the evidence but failed to do so, that's their problem. It's identical to bringing a time-barred claim; it's their fault, not yours, if they waive the statute of limitations by not raising it.
6.16.2009 1:49pm
Bruce Hayden (mail):
The problem here is that attorneys introduce inadmissible evidence every day, and get it admitted against pro se clients.

Sounds wrong?

Example 1: Traffic court. Hearsay is routinely admitted because it is not objected to. Cop is reading his notes. Hearsay. Cop testifies to what someone said over the radio. Hearsay.

It can actually be quite humorous when they are called on it. I got a quick dismissal one time when I objected to the hearsay of the cop on the ground (who gave the ticket) hearing from the cop in the sky that I was speeding.

Example 2: Collections. Many of the documents admitted in such cases are hearsay. Sure, maybe the original agreement with the credit card company is not. But much of the rest of the stuff is. Plus, an adequate foundation is rarely laid for any of it. No one objects, and so it is all routinely admitted, regardless of evidentiary merit.

What is bad there is that the judges sometimes seem to have a double standard when it comes to these sorts of cases. It is almost like hearsay doesn't exist in those cases, and when you object to it, the judges and especially opposing counsel seem taken aback.
6.16.2009 1:50pm
Thales (mail) (www):
"Clearly, it's permissible to admit evidence that you know is inconclusive, to misrepresent that evidence, to put on the stand witnesses that you know are perjuring themselves, et cetera."

Um, it's clearly *not* permissible to put witnesses on the stand that you *know* are perjuring themselves. There's a 0% chance that an attorney disciplinary commission would approve this. This is one reason (supposedly) that Alan Dershowitz never asks his criminal defense clients whether they are guilty.
6.16.2009 1:53pm
DavidBernstein (mail):
"Rule 3.3(a)(4) is also relevant: you cannot introduce evidence you know to be false."

I like that rule. Would it apply to an attorney who suggests in closing argument that a specific individual other than his client committed a crime, when the attorney knows that his client did it? That's not "evidence," but it's intentionally providing false information to the jury.
6.16.2009 1:56pm
David M. Nieporent (www):
David Drake, the duty of candor towards the tribunal means that you can't, e.g., say that "I should win because case X says so" if Case X has been overruled by Case Y. It does not require you to prepare a legal brief on behalf of your opponent; you're not obligated to tell the court, upon filing a lawsuit, "My client deserves to lose because the defendants have a defense to it that they could assert."

Whether it's unethical under some other provision is a separate question, but you do not have a duty to say, "I filed this paper past the removal deadline."
6.16.2009 2:00pm
George Weiss (mail) (www):
bruce hayden-

souds to me like your the one who got away wiht something..isnt the air officer's statement an immidiate sense perception under the applicable state hearsay excpetions (it seems it would be under fedral rules-not necessarily under your rules)
6.16.2009 2:01pm
rick.felt:
It can actually be quite humorous when they are called on it. I got a quick dismissal one time when I objected to the hearsay of the cop on the ground (who gave the ticket) hearing from the cop in the sky that I was speeding

I tried that once. I objected as the cop read from his ticket book. He angrily threw the book down on the table and said "well if that's what we're going to do, you can just dismiss it." But the judge saved him, saying "well, you're entitled to refresh your memory." I objected again as he started to read. The judge let it slide.

I think my biggest problem was that I did this in front of 30 people who were in court for the same cop, and I just showed all of them how to beat the ticket.
6.16.2009 2:03pm
Bill Poser (mail) (www):
It seems to me that from a public policy point of view, introducing inadmissible evidence is worse than unjustifiably removing a case to federal court. The reason is that merely changing the forum doesn't reduce the likelihood of the case being decided justly; indeed, removal to federal court may well increase it. Insofar as the rules of evidence are intended, as most of them are and arguably do, to increase the quality of decisions, introducing inadmissible evidence may have the effect of producing an unjust decision. Insofar as the highest goal is just decisions, it is therefore worse to introduce inadmissible evidence than improperly to change forum.
6.16.2009 2:08pm
ShelbyC:
Wait a minute. How can you "know" that an argument is legally wrong? There are two sides to every argument, and your job is to argue the side that benifits your client, right?
6.16.2009 2:09pm
George Weiss (mail) (www):
past recollection recalled is another hearsay excpeiton btw...under federal urles (and pobably most state rules) the written recollection may be read but the notes themselvs are not admissable unless otherwise excepted.
6.16.2009 2:10pm
David M. Nieporent (www):
I like that rule. Would it apply to an attorney who suggests in closing argument that a specific individual other than his client committed a crime, when the attorney knows that his client did it? That's not "evidence," but it's intentionally providing false information to the jury.
Unless the attorney is a percipient witness to the crime, in which case there are all sorts of other ethical problems, I don't see how he "knows" his client did it.

But no, it's not evidence; an attorney isn't supposed to provide evidence at closing argument at all. He's supposed to discuss what the evidence admitted at trial shows. He can certainly suggest that, based on the evidence before the jury, they can't exclude person X beyond a reasonable doubt.
6.16.2009 2:10pm
Javert:
Is it ethical to rob a bank, hoping either that you won't get caught or, if you do, that you'll get away with it? I suppose it depends on whether one has standards and a conscience.
6.16.2009 2:11pm
Barbra:
"attorney knows that his client did it"

That's a problematic assumption, unless the attorney is a witness to the crime (in which case s/he should not be on the case). In general, it is unethical to argue facts not supported in evidence, though. (Although it happens and nothing happens to the atty, unless in extreme cases of contempt)
6.16.2009 2:13pm
David M. Nieporent (www):
Wait a minute. How can you "know" that an argument is legally wrong? There are two sides to every argument, and your job is to argue the side that benifits your client, right?
There are not two legitimate sides to every argument. There are plenty of issues where one side is obviously right and there's no good faith basis to argue the other side.
6.16.2009 2:13pm
rick.felt:
isnt the air officer's statement an immidiate sense perception under the applicable state hearsay excpetions (it seems it would be under fedral rules-not necessarily under your rules

Yes, but remember one of the important motivations behind the hearsay rule: it's usually not fair to admit the statement of declarant who cannot be cross-examined. There's plenty of important cross that gets left out if the present-sense impression exception is allowed. Was the officer in position to see when the car crossed each white line? Was there sun glare? How's your vision? Were you on any medication at the time? Did you use a stopwatch? Was the stopwatch calibrated? Were there any other blue cars on the road?

Even when an exception potentially applies, the court must use its discretion to determine if the proffered evidence is reliable.
6.16.2009 2:14pm
CVMe:
Barbara has the overall point right: The reason for a code of conduct and ethics rules is so that it's possible to draw clear lines. Does the conduct run afoul of the rules or not? Without the rules, you can argue all day long about the competing incentives that inform the rules.

That said, John gets it correct on admitting an inadmissible document. It's admissible if the other side does not object, so there is no ethical problem with the attorney offering it.

On the removal, the answer is in Model Rule 3.1. Does the argument for removal have a basis in law in fact that is nonfrivulous or is there good faith argument for an extension, modification, or reversal of existing law? If not, it would be unethical to remove on that basis.
6.16.2009 2:16pm
Cullen (mail):
I think both scenarios are unethical. ABA Model Rule 3.1, for which most states have a mandatory analogous rule
, says, "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law."

A lawyer's ethics aren't contingent on opposing counsel being vigilant. The bar for ethical behavior doesn't lower as the likelihood of the behavior escaping notice or sanction rises.

Commenters who observed that lawyers and judges often agree to admit otherwise inadmissible evidence by stipulation are right on that score as a practical matter. But that's an entirely different matter than trying to admit evidence, or invoke a court's jurisdiction, hoping no one notices the impropriety.

Lawyers have an obligation to follow the rules that govern our profession even, especially, when no one is watching.
6.16.2009 2:17pm
George Weiss (mail) (www):
rick-

it just seems to me that usually the rules do state that even when somehting would be inadmissable under the rules there is a discretion of the judge to let it in anyway..particularly in hearsay issues

but i see no rule which allows a judge to keep somehting out which is clealry allowed..unless its probative value is substianally outwieghted.

besides..such belaberd decsretion and thinking is out of place in traffic courts in general.
6.16.2009 2:21pm
Cullen (mail):
As to Avatar's suggestion that lawyers may knowingly put on witnesses to perjure themselves, the rules explicitly prohibit that conduct as well: ABA Rule 3.3(a)(3)("A lawyer shall not knowingly offer evidence that the lawyer knows to be false.")
6.16.2009 2:21pm
DavidBernstein (mail):
One example where an attorney knew his client was guilty was where the attorney had tried to bargain for a reduced sentence in exchange for the client revealing where the victim's body was buried. The attorney then argued to the jury that Joe Schmo was the real culprit. I'm no expert on the official ethics rules, but this strikes me as way over the line from a normative perspective.
6.16.2009 2:22pm
Barbra:
I don't think so Cullen (re the evidence) because the substantive rule of evidence is that all probative evidence is admissable. That being the case, whether there is some other policy (rule of evidence), which bars its admission is for the parties to control.
6.16.2009 2:25pm
Dilan Esper (mail) (www):
Generally, the way these play out is that if you have a colorable argument, you should be zealously advocating your client's interests. And that covers most cases. But if there are really no legal grounds at all-- if the question is clear and there is controlling authority-- that's where zealous advocacy of your client's interests ends and you have an obligation to refrain from arguing the clearly barred position.

The other duty is candor to the tribunal-- this means that even if you are allowed to advocate the position (because it is not completely foreclosed by existing law), you still need to tell the truth about it. In other words, don't misrepresent the facts or holdings of cases, etc. In practice, I have found that people violate this second obligation more than the first.

That said, none of this will get you brought up on bar charges. State bars have no guts when it comes to policing this.
6.16.2009 2:26pm
Prosecutor:
Bruce:

You actually bring up an interesting ethical adjunct to this argument that municipal court prosecutors (traffic and minor misdemeanors) confront all the time -- when up against a pro se defendant who is just there to "have his day in Court" or "tell it to the Judge," how much lawyering is too much? Is there such a thing as too much lawyering? Because in reality, let's say the pro se defendant who does not know the rules of evidence wants to testify to some hearsay, too? If I don't object, but I battle that hearsay with some from my own witness, have we thwarted the ends of justice, or reached closer to them? Should I both staunchly object to hearsay in his case and avoid presenting any in mine? As a prosecutor, I firmly believe that my "client" wants me to behave fairly at all times. But what is fair when an uneducated-in-the-law pro se defendant has a fool for a client?
6.16.2009 2:28pm
More Importantly . . .:
You don't "know" anything about the document's admissibility or the case's removability until you ask and the judge rules. End of question.
6.16.2009 2:33pm
Ak Mike (mail):
Prof Bernstein - when you are representing a criminal defendant at closing, you are holding the prosecution to its burden of proving every element of the case beyond a reasonable doubt. If the evidence is consistent with someone other than your client having committed the offense, it is essentially your duty to point that out to the jury. You are not providing false information to the jury, you are just arguing that the information that has been presented to it is consistent with your client's innocence.

So there is no ethical problem with making this argument to the jury, because it is not your job to prove your client's innocence - rather, it is to demonstrate that the prosecution has failed to prove guilt.

The implication of your remark is that if you, the defense attorney, think your client is guilty, you should avoid any closing argument at all that contests the prosecution.

But it is not your job to determine guilt or innocence. That's the jury's job. Your job is to argue whether the evidence is proof beyond a reasonable doubt of guilt.
6.16.2009 2:35pm
Snaphappy:
Although I paid the only photo traffic ticket I ever received, it seems to me that there is no way that the government could ever prove such a case. First, the photos do not show the driver. Second, it's highly unlikely that whoever the government sends to court will be able to properly authenticate the photo, the accuracy of the speed measurement, the time stamp, etc.

In the jurisdiction where I received the ticket, you get no points and a relatively small fine. If there were points, I would have taken the time to fight it.
6.16.2009 2:40pm
David M. Nieporent (www):
I think both scenarios are unethical. ABA Model Rule 3.1, for which most states have a mandatory analogous rule, says, "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law."
Yes, I think we all agree with that. The question is whether and how it applies to these two situations. If I remove late, but the other side waives the delay by not objecting -- perhaps through inattentiveness, perhaps because he has made a judgment call that he doesn't object to removal -- can we really say that it was "frivolous"? I mean, I prevailed on the point!

Note that removing late is different than a case where the federal court has no SMJ at all; in the latter situation there's by definition no possibility of a good faith basis for my action. I can't prevail, no matter what.
6.16.2009 2:47pm
arbitraryaardvark (mail) (www):
As to removal, if removal is improper, wouldn't the federal court lack jurisdiction,and have an independent duty to establish whether it has jurisdiction? So what's the benefit of losing a motion to remove? If it's a good enough case to fool a federal judge, it's probably not unethical to try it. Otherwise, if it's just to stall and add expense, I'd find that unethical.
As barbra said, the norms are different for counsel in criminal defense and for the prosecutor.
6.16.2009 2:48pm
ANON:
Not to be flip, but I find it quite disturbing that a law school professor who teaches Evidence doesn't know the difference between substantive evidence and closing argument.
6.16.2009 2:53pm
David Hardy (mail) (www):
"it's clearly *not* permissible to put witnesses on the stand that you *know* are perjuring themselves. There's a 0% chance that an attorney disciplinary commission would approve this. This is one reason (supposedly) that Alan Dershowitz never asks his criminal defense clients whether they are guilty."

As I recollect, Dershowitz's win/loss ratio is not exactly impressive. Yup, you can't (if I recall the rules, haven't done criminal work in decades) put on a defendant, to deny guilt, in a way that you know is perjured. On the other hand, you'd be a fool to put a defendant on at all, and let the prosecutor try to carve him up, unless you were satisfied that the defendant was innocent, preferrably squeaky-clean, AND he was convincing as a witness on that. How do you make either judgment without questioning, indeed grilling, him on his guilt vs. innocence? The alternative is to retain the power to put a guilty defendant on the stand, open to being carved up for dinner, while you are unprepared to defend.
6.16.2009 2:56pm
Benjamin Kimball (mail):
This comes down to a question of discretion. The admissibility of evidence is within the discretion of the court, e.g. if the court accepts it, it is admissable. It is therefore not an ethical violation to submit said evidence. SMJ is not discretionary, therefore to try to remove knowing you cannot is unethical.
6.16.2009 2:56pm
MCM (mail):
Wait a minute. How can you "know" that an argument is legally wrong?


There is such a thing as controlling authority, or even clear statutory prohibitions of certain evidence.

One example might be rape shield laws. If my state absolutely bars evidence of the victim's past sexual conduct, then I can pretty much know that evidence is inadmissible. There's no two sides to the argument in the courtroom - maybe in policy circles, but that's not what the courtroom is for.

There are two sides to every argument, and your job is to argue the side that benifits your client, right?


Wrong. The idea that there are "two sides to every argument" is hopelessly childish and naive.

A lawyer's job is to adhere to the highest standards of ethical and moral conduct, and within those standards, be a zealous advocate for his client's interests.

(Who's being naive now?) Of course the boundaries of those standards are often debatable, but there is such a thing as a black and white case (e.g., sometimes there is evidence that you absolutely know is inadmissible).

You don't "know" anything about the document's admissibility or the case's removability until you ask and the judge rules. End of question.


Wrong. Dilan Esper is totally correct with the textbook answer. It's entirely possible that you know that there are no grounds for admitting the evidence, or a complete prohibition of the evidence. Just hoping the judge screws up does not make it ethical.

But Bruce Hayden's point is interesting. I wonder if there are other examples where the rules are just ignored as a matter of course (probably because they would be too unwieldy in practice).
6.16.2009 2:57pm
Anderson (mail):
from a purely evidence law perspective, I'm not sure you can really say that there is such a thing as inadmissible evidence until there is an objection

That sounds right. One could, after all, be mistaken. Why withhold evidence because "I know it's inadmissible," only to realize too late that one was mistaken?

It can actually be quite humorous when they are called on it.

As in the case where a doctor tried to testify to the contents of an article he'd read, the objection "hearsay" was made, and the doctor angrily sputtered, "It's NOT hearsay -- I *read* it!" True story.

Is it ethical to try to remove a case to federal court that you know is not removable, hoping that the other players will be asleep at the switch?

Ethical or not, it can get you in trouble, as some Louisiana lawyers found out.
6.16.2009 2:58pm
MCM (mail):
That said, John gets it correct on admitting an inadmissible document. It's admissible if the other side does not object, so there is no ethical problem with the attorney offering it.


I think you mean "It will be admitted if the other side does not object". The other side failing to object does not make inadmissible evidence admissible, even if it is admitted.
6.16.2009 3:04pm
David M. Nieporent (www):
As to removal, if removal is improper, wouldn't the federal court lack jurisdiction,and have an independent duty to establish whether it has jurisdiction? So what's the benefit of losing a motion to remove? If it's a good enough case to fool a federal judge, it's probably not unethical to try it. Otherwise, if it's just to stall and add expense, I'd find that unethical.
...and...
SMJ is not discretionary, therefore to try to remove knowing you cannot is unethical.
Yes, I agree with both of those, but neither seems to have anything to do with the fact pattern in the question. The issue is what happens when the federal court does have SMJ, but the original removal notice was untimely. In that case, the plaintiffs have only 30 days to file a motion to remand; if they miss that deadline, their motion is also untimely under 28 USC 1447(c).
6.16.2009 3:05pm
s_y:
Old school lawyer told me a story about an abuse of removal. 1441 automatically divests jurisdiction from the state court judge regardless if the Federal Court can retain jurisdiction. So, fancy white shoe lawyer decided to have case removed on the date of a hearing in state court. State court judge was powerless to stop it and Federal judge had no way of remanding the case back quickly enough. Federal Judge was livid by this and sanctioned lawyer to 10 days in jail. Sanction was affirmed by the Court of Appeals. Lesson seems to be that if you're going to remove a case that is going to egregiously disrupt the state proceeding, you better be right that there will be federal jurisdiction.
6.16.2009 3:05pm
cboldt (mail):
-- In other words, don't misrepresent the facts or holdings of cases, etc. --
.
ROTFL. I'm thinking of the Maloney case (and many other cases that blatantly mischaracterize Presser) and Heller case (and many other cases that mischaracterize Miller).
.
If the Courts participate in and endorse misrepresentation of facts and holdings, it must be "ethical" as a matter of law.
6.16.2009 3:07pm
David M. Nieporent (www):
Is it ethical to try to remove a case to federal court that you know is not removable, hoping that the other players will be asleep at the switch?

Ethical or not, it can get you in trouble, as some Louisiana lawyers found out.
Yes, lying to a judge about the facts -- as those lawyers apparently did -- is a good way to get in trouble.
6.16.2009 3:07pm
Jonathan F.:
Is it ethical to try to remove a case to federal court that you know is not removable, hoping that the other players will be asleep at the switch?

I think that in most jurisdictions this is a violation of 28 U.S.C. § 1927, which makes an attorney personally liable for his opponent's costs and fees who "multiplies the proceedings in any case unreasonably and vexatiously." I suppose that if the other side is indeed asleep at the switch you will get away with it; if not, § 1927 is pretty clearly applicable.
6.16.2009 3:08pm
DavidBernstein (mail):
ANON: Please pay attention before you cast aspersions. I wrote:

I like that rule. Would it apply to an attorney who suggests in closing argument that a specific individual other than his client committed a crime, when the attorney knows that his client did it? That's not "evidence," but it's intentionally providing false information to the jury.
6.16.2009 3:08pm
J Steele (mail) (www):
On the removal issue, the ethical limitations are 3.1 (nothing frivolous!), Rule 11 (good faith belief, etc.), and 3.3 (duty of candor to court about negative, controlling authorities and no false facts!). So, as the question is phrased, the answer to the question about removal is "it's unethical."

The other question is more difficult and to answer it I'd like to more about why the document is inadmissible. Is it inadmissible because the judge has already declared it inadmissible? (That's unethical.) Is it inadmissible because it's a false document and hence inadmissible as unauthentic? (That's unethical.) Or is it inadmissible because if challenged you can provide only some but perhaps not all of the elements of a business records exception? (I'm hard pressed to say that's unethical if you really do think it's authentic.) So, for me anyway, the answer to the first question is the lawyer's favorite answer: it depends.

In response to DB's question about "false cases," we have to remember that the criminal defense counsel is permitted to do things that other lawyers may not. In general, so long as the criminal defense lawyer doesn't introduce false evidence she may *argue* a false case to the jury (i.e., a case she knows isn't factually true). Don't assume the same license applies to you if you're a civil litigator!

John Steele
6.16.2009 3:08pm
rick.felt:
it just seems to me that usually the rules do state that even when somehting would be inadmissable under the rules there is a discretion of the judge to let it in anyway..particularly in hearsay issues

Every hearsay exception needs a foundation. Just to pick a fairly obscure example: birth information in family Bibles is admissible under a hearsay exception. But you can't just show up in court with a document that you call a "family Bible" and expect to get the writing in. You have to show that this was a family Bible, and not a Chuck E. Cheese's menu, an autographed copy of Pet Sounds, or a Bible that you picked up at the Christian bookstore on the way to court.

So what's the foundation for believing that the officer in the helicopter actually observed a car exceeding the speed limit? Well, we have to know how he went about that measurement. We don't know if he was in position to see the car. We don't know if he was just picking every sixtieth car out because that's his favorite number. Without more information, there's insufficient foundation for the exception.
6.16.2009 3:12pm
ANON:
Professor Bernstein, I was paying attention, and I fail to see how I've missed anything.

We have a rule that by its plain terms applies to A, but not to B. You recognize that A is not B, but still want to apply that rule to B because it looks a lot like A to you. That certainly sounds like being unable to tell the difference between A and B to me.
6.16.2009 3:17pm
Cullen (mail):
Professor Bernstein:

Apropos of arguing some other person's guilt when the criminal defense lawyer knows his own client to be guilty, let me make two points.

First, ABA Rule 3.1 explicitly permits "[a] lawyer for the defendant in a criminal proceeding ... may nevertheless defend the proceeding as to require that every element of the case be establsihed." Comment 3 to the Rule notes that the Rule's requirements are suboordinate to federal or state constitutional law that entitles a defendant to in a criminal mattter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by the Rule.

Second, criminal law practitioners confront the difficult circumstance you describe all the time. A lawyer who knows his client is guilty (e.g., the client has confessed to the lawyer and the confession is exhaustively corroborated) may argue "The Government has not proven its case beyond a reasonable doubt" but she may not argue "Mr. Absent Offender is the real killer." The first is a permissible argument about the evidence, the latter is a statement the lawyer knows to be false. By the same token, assuming the evidence gave rise to an inference that Mr. Absent Offender committed the crime, a lawyer may argue, "There is evidence that Mr. AO is guilty, and the Government's evidence doesn't exclude that possibility," but, as cannot say, "Mr. Absent Offender did this crime."

Are those thin distinctions likely lost on an inattentive or untrained listener? Probably so. But lawyering is a literate profession, words count, and lawyers' fidelity to the rules that govern our profession, including to those that require us to be candid and to represent our clients, is important even in difficult cases.

Cullen
6.16.2009 3:23pm
J Steele (mail):
As for the scenario of the criminal defense lawyer accusing someone of being the culprit when the lawyer knows that the person is not the culprit, there was a great law review article on that several years ago -- but I can't find it right now.

Anyway, the article argued that the practice was distinguishable from the well accepted practice of offering a defense based upon a false claim that the defendant simply wasn't at the scene (i.e., an alibi offered without offering any false evidence). The argument was that to try to pin the blame on an innocent person is very different and is blameworthy, morally wrong, etc.

To my recollection there wasn't much support in the rules or in the case law for the article's conclusion -- even if the conclusion is intuitively appealing.

I suppose we might make a further distinction between (a) a case where the defense lawyer blames an innocent person but the person is not a defendant in the trial, and (b) a case where the innocent person's is a defendant and hence their life/liberty is at issue. But, again, I don't recall that there is a lot of case law holding either scenario unethical.
6.16.2009 3:24pm
AF:
Contra John Steele, the answer to the evidence question is clear: it is not unethical to offer inadmissible evidence.

If, in the course of offering inadmissible evidence, you are disregarding a court order, abetting fraud, or beating a witness over the head with the purported murder weapon, well, that is unethical.
6.16.2009 3:27pm
David Hardy (mail) (www):
I can see the ethical impropriety of invoking a legal proceeding, removal, without knowing there is an adequate basis. I can't see what's wrong with moving to admit evidence that is probably inadmissible, not because it is falsified or anything like that, but because it runs afoul of another rule. If the opposition wants to object that it is hearsay, unduly prejudicial, needs additional foundation, etc., let them do so.
6.16.2009 3:27pm
J Steele (mail):
Cullen,

Is there case support for your statement that the criminal defense may not say "Mr. X was the real killer" in closing argument?

John Steele
6.16.2009 3:27pm
Cullen (mail):
John -

I don't know of a case for the proposition I cited and to which you referred. To my mind, though, ABA Model Rule 3.3 (a)(1)("A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer") answers this question. If, in our hypo in this discussion, the lawyer genuinely knows that Mr. X is not the real killer, then I think 3.3(a)(1) will be a very tough hurdle to surmount. Virginia's Rule of Professional Conduct 3.3 has substantially identical language.

Cullen
6.16.2009 3:33pm
AF:
Cullen --

In closing argument, the lawyer is not making statements of fact. He is arguing what the evidence shows. A lawyer is allowed to argue that the evidence shows someone else is guilty, even if he does not believe it.
6.16.2009 3:35pm
rick.felt:
If, in our hypo in this discussion, the lawyer genuinely knows that Mr. X is not the real killer, then I think 3.3(a)(1) will be a very tough hurdle to surmount.

Same facts, but what about the statement "the evidence shows that Mr. X is more likely than not the murderer"?

Hypothetically, in the course of defending your client, you may have put on enough evidence that, combined with the state's presentation of evidence, you have proved by a preponderance of the evidence that Mr. X is the murderer. You're not saying that Mr. X did it, but you're saying that that's what the evidence shows.
6.16.2009 3:40pm
J Steele (mail):
Cullen,

We may disagree. My understanding is that the special license given to criminal defense lawyers in 3.1 means that they can argue false cases in summations, and make claims they know to be false in summations, so long as they don't knowingly offer false evidence. Further, it's my understanding that criminal defense lawyers aren't required to use the "reasonable doubt" "government failed to prove its case" rhetoric.

They can, and often must, make the argument straight up, with every bit of convincing force they can, and they may, for example, look jurors straight in the eyes during closing argument and say "defendant wasn't there!" even if the lawyer knows otherwise. They can also say, "witness is mistaken!" or "cop is simply racist!" in the closing when the lawyer knows otherwise.
6.16.2009 3:40pm
J Steele (mail):
AF,

Your posting regarding my comments, and the posting of David Hardy right after yours, and my post, imho, all come out the same way.
6.16.2009 3:44pm
GUEST:
FWIW, a broad reading of MPR 3.4(e) would cover the conduct described in Bernstien's hypo.
6.16.2009 3:45pm
Gramarye:
David Bernstein wrote:

My own view, putting aside the formal rules of professional conduct, is that attorneys' first obligation should be to the integrity of the legal system, and not to their clients' interests.


I agree, but I don't necessarily think that a removal or admission of evidence that might have successfully been opposed necessarily compromises the integrity of the legal system. If one's intent is purely dilatory, particularly if the other side has already put the movant on notice that they're not going to consent to removal to federal court or to the admission of a particular piece of evidence, then there may be an argument that you're compromising the integrity of the system simply by trying to bury the other side in legal fees and hope that the judge isn't inclined to grant any kind of award of attorney's fees. If one's intent is simply to get the information before the court in the most expeditious manner possible, however, and it's something the attorney knows to be true (or at least fairly solid) but would take substantially more of the lawyer's time and the client's money to prove, I can't say I see the disservice to the system, however.

The late removal disconcerts me somewhat more because of the specter of forum-shopping, but nevertheless, I hardly think that one is perpetrating some kind of corruption upon the legal system by making the attempt. As for the admission of potentially inadmissible evidence, perhaps it's just because I work in a small, informal district in which pretty much everyone in the bar association knows each other, but there's all but an unwritten compact here that no one nitpicks about evidence. If we went through the formalities of authentication here, I can see no other outcome but greatly increased work (and fees) for no perceptible increase in the quality of the system's outcomes.
6.16.2009 3:49pm
Cullen (mail):
Rick.Felt - I think the language you've suggested is permissible.

AF, of course you're right that closing argument is just that, argument, not a statement of facts. Two things, though:(i) the lawyer's argument has to be grounded in the evidence, and (ii) argument has to be just that. When a lawyer flatly says, "Mr. X is the killer" I don't think that's "argument" unless he also sets out the premises that prove that conclusion and makes clear that the conclusion flows from the premises.

For example, an argument to this effect is permissible: (i) the evidence proved Mr. X had motive and opportunity to kill, (ii) Mr. X has no alibi for the time of crime, (iii) you the fact finder can reasonably infer from the evidence that it is as likely that X is the killer as it is that my client D is the killer. Therefore, the jury should acquit D because the evidence doesn't prove D's guilt beyond a reasonable doubt. That's a sight different than saying "X is the killer" when the lawyer knows that sentence is just false. I think that sentence is precluded by Rule 3.3.
6.16.2009 3:50pm
AF:
Your posting regarding my comments, and the posting of David Hardy right after yours, and my post, imho, all come out the same way.

Agreed. My point was that the ethical problems you mention are only tangentially related to the admissibility of the evidence, so the answer to the question should be "no" not "it depends."
6.16.2009 3:53pm
George Weiss (mail) (www):
rick-

intereting.
6.16.2009 3:55pm
DavidBernstein (mail):
ANON: I said that closing argument isn't evidence. You said I don't know that closing argument isn't evidence. You weren't paying attention. Beyond that, I was just wondering how broadly a particular rule is construed, the fact that something isn't "evidence" for trial purposes doesn't mean the word "evidence" isn't construed broadly for purposes of an ethical rule.
God, why can't law students/lawyers ever admit they were wrong!
6.16.2009 3:59pm
ShelbyC:
@Cullen, so if I'm a juror who knows what's up, I can tell from whether the defense counsel says, "my client is innocent", or "the evidence shows that my client is more likely than not innocent" whether or not the lawyer knows his client is guilty? That is probably why defense lawyers are given special license to argue the innocence of their client.
6.16.2009 4:03pm
Cullen (mail):
ShelbyC and John Steele -

I take both your points about the cumbersome result my interpretation of Rule 3.3 requires. I would make only a couple response. First, I think skilled advocates can make a compelling argument without sounding stilted and without making a false statement. Second, it may be there should be some extra dispensation for criminal defense lawyers, but I don't read the language of Rule 3.1 pertaining to criminal defense lawyers (may "defend the proceeding as to require that every element of the case be established") to be so broad as to permit a lawyer to make a flat out false declaration of another person's guilt.

I've very much enjoyed this discussion! Thanks.
6.16.2009 4:10pm
POT . . .:
. . . Meet Kettle.
6.16.2009 4:13pm
Ak Mike (mail):
Cullen and Prof. Bernstein - the judge will instruct the jury that what the lawyers say is only argument and is not evidence. It's all right to make your argument "the evidence shows that actually Mr. A did it" rather than "the evidence is consistent with the possibility that Mr. A did it."

Prof Bernstein - why is it not OK "normatively" to say "Mr. X did it" if you think that's not true, but is OK to say "my client did not do it" when you think he did?
6.16.2009 4:14pm
Dan Weber (www):
As a non-lawyer, I'm pretty distressed to hear that the expert I hire may need to be ready to detect such behavior from the opposing side, with no consequences for trying such a thing.

Should it be unethical to make an illegal move in chess? Against experienced chess players, they will all notice and immediately object, but if I'm facing off against my son he has no chance. Yes, it encourages him to "learn the rules," but if the game has any stakes (like all court cases do) this is grossly unfair.

Most non-lawyers expect that's why the judge is there -- to automatically enforce the rules.
6.16.2009 4:36pm
Jay:
"It can actually be quite humorous when they are called on it. I got a quick dismissal one time when I objected to the hearsay of the cop on the ground (who gave the ticket) hearing from the cop in the sky that I was speeding"

How is this hearsay at all? I presume it wasn't introduced to prove that you were actually speeding, but as to why the cop on the ground started paying attention to you, etc. But maybe I'm presuming wrong, in which case that is pretty absurd.
6.16.2009 4:45pm
cboldt (mail):
-- Most non-lawyers expect that's why the judge is there -- to automatically enforce the rules. --
.
On the bright side, now you know better. The judge referees contests between the lawyers. If the opposition doesn't object, then there is no contest to referee.
.
Lawyers can lose against "the law" too, by failing to preserve an issue for appeal.
6.16.2009 4:47pm
David M. Nieporent (www):
Most non-lawyers expect that's why the judge is there -- to automatically enforce the rules.
Judges are like umpires, not like referees. In baseball, there are many situations in which the umpire makes no call unless the defendant asks for it. For instance, if the offense bats out of order, unless the defense points it out and appeals to the umpire, the umpire ignores it. If a runner misses a base, or leaves too early on a sacrifice fly, ditto.
6.16.2009 4:48pm
rick.felt:
How is this hearsay at all? I presume it wasn't introduced to prove that you were actually speeding, but as to why the cop on the ground started paying attention to you, etc. But maybe I'm presuming wrong, in which case that is pretty absurd.

The helicopter cop measures speed with a stopwatch and lines painted on the road (or other markers). He then radios down to ground cop "the blue car was speeding." The ground cop gives you a ticket.

So now you're in court, and ground cop says "the helicopter cop told me that the blue car was speeding." I'm sure you know why this is hearsay.
6.16.2009 4:54pm
ShelbyC:

My understanding is that the special license given to criminal defense lawyers in 3.1 means that they can argue false cases in summations, and make claims they know to be false in summations, so long as they don't knowingly offer false evidence.


Does anybody know if the same license applies to pro-se defendants? Can they tell the fact-finder, "I am innocent" when they're not?
6.16.2009 6:08pm
Jay:
rick.felt-- And the routine practice is not to present any of what you just said to the court (testimony by the helicopter cop, some kind of explanation of the process), but just to have the ground cop testify "I heard he was speeding so I stopped him"?
6.16.2009 6:14pm
Public_Defender (mail):
It depends. If the defect unarguably deprives the court of jurisdiction to act, then I think you have to refrain from filing. If there is wiggle room, or if it's a waivable error (like most statutes of limitations), I might file if the underlying claim was strong enough. If I think my client got screwed (not a formal term, I know), I am more likely to push the limits.
6.16.2009 6:26pm
PC:
A lawyer's job is to adhere to the highest standards of ethical and moral conduct, and within those standards, be a zealous advocate for his client's interests.

It would be great if DAs were held to the same standard.
6.16.2009 9:00pm
Dave N (mail):
And the routine practice is not to present any of what you just said to the court (testimony by the helicopter cop, some kind of explanation of the process), but just to have the ground cop testify "I heard he was speeding so I stopped him"?
When I was prosecuting those kinds of cases, I would put both the cop in the sky and the cop on the ground on the witness stand. There was no real hearsay problem that way.
6.16.2009 9:05pm
drunkdriver:
Getting back to David's original examples (I wish I'd not been working when this was first posted!), I think there's a little play in the joints. Somewhere in the continuum of

[clearly meritorious motions] -> [filing motions the court will deny] -> [filing motions no reasonable court would deny]

you get so far from being legally justified that you are subject to sanctions, and bar discipline. I guess what helped Jack Thompson get disbarred was a pretty good example- i.e., e-filing actual pornography on the PACER system.

As for unjustified removals- depends. If you remove where there is jurisdiction, but a statutory defect (such as failure to timely remove, or joinder by all defendants), lots of plaintiff's lawyers fail to figure that out, and so if the law is set up so the federal court will keep the case in that instance, what has the lawyer done "unethical" by using the system as it's intended? On the other hand, if the plaintiff files a timely remand motion, the removing lawyer transgresses if he opposes it by making arguments plainly foreclosed by precedent.

Trying to admit inadmissible evidence-- this is probably not unethical unless you are violating a pretrial order, or introducing something so inflammatory and obviously irrelevant to the case at hand that you risk mistrial or pissing off the judge. Your opponent should file motions in limine to stop you from doing this though. That assumes you disclosed the evidence in discovery-- trying to play "gotcha" with undisclosed and inadmissible "impeachment" is a dick move.

As for the flip side- nonmeritorious objections to admissible evidence-- this may just fall in the "what the hell" category. It's surprising, for example, how many judges will sustain "hearsay" objections when it's very obvious that the statement in question either doesn't meet the HS definition, or falls easily within one of the exceptions.
6.16.2009 10:56pm
Bruce Hayden (mail):
When I was prosecuting those kinds of cases, I would put both the cop in the sky and the cop on the ground on the witness stand. There was no real hearsay problem that way.
In this case, they only had the cop on the ground, and I think they may have been trying to fudge it a bit.
6.17.2009 12:02am
Bruce Hayden (mail):
As for the flip side- nonmeritorious objections to admissible evidence-- this may just fall in the "what the hell" category. It's surprising, for example, how many judges will sustain "hearsay" objections when it's very obvious that the statement in question either doesn't meet the HS definition, or falls easily within one of the exceptions
Maybe I just expect in real life (of which, I exclude the scenarios I mentioned above), where both sides are represented, that pushing the envelope on admissibility is just part of the job of the attorneys involved. To some extent, it is a competition for the truth, and both sides pushing is how we get there.
6.17.2009 12:07am
djh5:
I have just this issue in an appeal that I am working on that is fully briefed (I didn't work on anything prior to the appeal). My client was a defendant in a criminal insider trading case, and certain testimony was ruled to be inadmissible hearsay in the district court and by the Circuit Court. The criminal case was dropped after the Circuit Court's decision. Five years later the civil case on the same facts went to trial and the SEC put on the same witness to give the same testimony before the same judge who earlier ruled it hearsay. My client (who was then pro se) didn't object. It was somewhat difficult to argue this point, but I do agree that the lawyer has to ask questions for which he has a good faith basis that will elicit admissible evidence, but had a hard time finding explicit authority for it. We'll see what happens.
6.17.2009 1:38am
David Schwartz (mail):
Is there some rule that you can't invite the other side to concede admissibility should they choose to do so? Isn't that effectively what you're doing?
6.17.2009 7:08am
ParatrooperJJ:
Your only duty is to your client.
6.17.2009 8:29am
Anderson (mail):
Your only duty is to your client.

That's simply not true, as noted above. A lawyer is an officer of the court, and has the duty not to lie to the court, for instance.
6.17.2009 9:00am
neurodoc:
djh5, any new or different evidence presented in the civil case? Does the civil case turn on anything different from what was in question in the criminal one? Were they both jury trials? Do you think the outcome of the civil trial would be different but for the hearsay testimony?
6.17.2009 10:13am
einhverfr (mail) (www):
Isn't that an argument lifted from Plato? After all (iirc in Republic), he argues that since a wrestler who falls intentionally is better than one who falls unintentionally, that someone who intentionally does wrong is more moral than someone who unintentionally does wrong. This strikes me as a variation of that argument.

Personally, I think that it IS unethical to admit a document that you know is certainly inadmissible, but I think that if there is a reasonable argument to be made that the document might be admissible, then it doesn't fall inside that line. There may be many cases where documents might or might not be admissible depending on how various doctrines interact, and I would only call it unethical in the most clear-cut cases.
6.17.2009 12:21pm
einhverfr (mail) (www):
BTW, drawing the line at certainly inadmissible documents avoids the problems Bernstein seeks to avoid while better protecting the integrity of the legal system. If one doesn't know for certain that the document is inadmissible then there is no ethical problem (I don't see a problem seeking to admit a document that is only probably inadmissible-- the problem only occurs where inadmissibility is known and certain).
6.17.2009 12:53pm
Spartacus (www):
One example where an attorney knew his client was guilty was where the attorney had tried to bargain for a reduced sentence in exchange for the client revealing where the victim's body was buried. The attorney then argued to the jury that Joe Schmo was the real culprit. I'm no expert on the official ethics rules, but this strikes me as way over the line from a normative perspective.

Couldn't the defendant know where the body was buried even if Joe Schmo was the culprit? Often, such knowledge can come from having been present at the commission of, and therefore legally responsible, for the crime, even though your defense is that you should not be held responsible, Joe Schmo, who actually pulled the trigger, should.
6.17.2009 1:00pm
einhverfr (mail) (www):
Redman wrote:


Is it unethical to lodge an objection to a document you know is admissible?

Is it unethical to oppose an argument which you know is legally sound?


If we draw the line at the lack of a good faith (or at least colorable) argument, then sure, if that applies.

Now, if you are lodging an objection to a document you know is admissible, but are making a reasonable argument that it is not, I don't see a problem there.

Similarly, I don't see a problem representing a client you know will lose but where you are making good-faith arguments in support of a legal theory you believe to be flawed.

The line should be drawn where there is no basis in law or fact for the proceding.
6.17.2009 1:07pm
Bruce Hayden (mail):
isnt the air officer's statement an immidiate sense perception under the applicable state hearsay excpetions (it seems it would be under fedral rules-not necessarily under your rules)
It very much depends on what he is intending to prove. If he is trying to prove probable cause for an arrest, then yes, it is a present sense impression (803(1)). But if the goal is to prove speeding, then no. It is being introduced to prove the matter asserted (that someone was speeding).

Think of it this way. The mere fact of hearing the dispatcher state that there was a warrant for someone's is likely sufficient in and of itself for PC for an arrest. But hearing about the speeding is not witnessing the speeding, but rather witnessing someone else telling about witnessing the speeding. Yet, there are often attempts to introduce just that, evidence that someone else said they witnessed speeding (or other law breaking) as evidence that the speeding (or other law breaking) actually happened (and you were the one doing it, etc.)
6.17.2009 1:35pm
einhverfr (mail) (www):
Rick.felt:


The helicopter cop measures speed with a stopwatch and lines painted on the road (or other markers). He then radios down to ground cop "the blue car was speeding." The ground cop gives you a ticket.

So now you're in court, and ground cop says "the helicopter cop told me that the blue car was speeding." I'm sure you know why this is hearsay.


That's an oversimplification. By the time the cop pulls the driver over, he has to have enough information to give a ticket. The ground cop will almost certainly have a calculated speed from the air cop. So you have evidence along with a chain of that evidence. This is no more hearsay than for police to arrest someone based on detective work a different officer did.
6.17.2009 1:45pm
Bruce Hayden (mail):
Personally, I think that it IS unethical to admit a document that you know is certainly inadmissible, but I think that if there is a reasonable argument to be made that the document might be admissible, then it doesn't fall inside that line. There may be many cases where documents might or might not be admissible depending on how various doctrines interact, and I would only call it unethical in the most clear-cut cases
I think this too narrow. Part of the problem I see is that it often takes an evidentiary foundation for qualifying for an exception to Hearsay. For example, one of the most common is the "business record" exception (803(6)):
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
So, you may easily have a "business record", but if you don't have that certification or some other way of proving that it is indeed qualified under this rule, then it wouldn't be admissible.

Most of the exceptions to the hearsay rule have some sort of foundational requirements, and without providing that, the testimony should be excluded as hearsay. So, you also need to take into account the strength of your evidence proving an exception to the Hearsay rules.
6.17.2009 1:55pm
Bruce Hayden (mail):
That's an oversimplification. By the time the cop pulls the driver over, he has to have enough information to give a ticket. The ground cop will almost certainly have a calculated speed from the air cop. So you have evidence along with a chain of that evidence. This is no more hearsay than for police to arrest someone based on detective work a different officer did.
You need to keep straight the difference between arrest and trial. Yes, the ground cop can ticket the driver. But he needs the testimony of the air cop to prove his case at trial.
6.17.2009 1:58pm
Bouldergeist (www):
Anderson: A lawyer is an officer of the court, and has the duty not to lie to the court, for instance.
And since when is this stricture EVER enforced? Hell, in Colorado, an attorney can even sleep with a client and get away with it. Suborning perjury? No problemo. Advise a prostitute to lie to federal investigators? If you are a federal judge, there is no law.
"The only rules that really matter are these: what a man can do and what a man can't do."
-- Captain Jack Sparrow
6.17.2009 4:27pm
Toby:
Fascinating conmnversation for a non-lawyer to listen to. One theme that stood out (the original question was "Is it unethical") was "only if it angers the judge". No one has disagreed. Aparantly, then, the standard is something similar to "anything that doesn't get you actually disbarred is ethical"

Is this actually the consensus?
6.17.2009 4:43pm
ohwilleke:
A similar issue discussed a lot in the literature is the ethics of arguing false inferences (e.g. creating reasonable doubt about whether your client was at the scene when you know that he was but the other side can't prove it).

When I was first starting to practice we used to talk about leading the judge into reversible error.

Generally, the issue comes down to Rule 11 (can you at least make a good faith argument for a change in the law given the facts you know to support your position), and the ethical rule preventing you from taking a legal position without disclosing squarely applicable controlling legal authority to the contrary. Higher standards apply in ex parte hearing contexts.

On evidence the answer should almost always be "ethically O.K." because it is rare that an objection to admission of evidence cannot be waived and it will often be harmless or non-plain error. On the removal question, ethically, you probably need at least a colorable claim for a right to remove (and since it goes to subject matter jurisdiction you may be ill advised to win with that defect in place).
6.17.2009 6:31pm
Bouldergeist (www):
ohwilleke: and the ethical rule preventing you from taking a legal position without disclosing squarely applicable controlling legal authority to the contrary.
In Colorado, Andy?!? Ethics?!? Here, it is an undiscovered solar system.

I'll raise this issue, taken directly from the files of KnowYourCourts.com, because it is both clean and topical. In Caperton v. A.T. Massey Coal Co., No. 08-22 (U.S. Jun. 9, 2009), the United States Supreme Court decided a dispute involving campaign contributions to judges by litigants, with the majority making the following salient observations:
[T]he Due Process Clause incorporated the common-law rule that a judge must recuse himself when he has "a direct, personal, substantial, pecuniary interest" in a case. This rule reflects the maxim that "[n]o man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity." …

On these extreme facts the probability of actual bias rises to an unconstitutional level. …

Our decision today addresses an extraordinary situation where the Constitution requires recusal.
Caperton, slip op. at 6, 16 (citations omitted; emphasis added).

It is difficult to imagine any fact situation any more extraordinary or extreme than a judge deciding a case in which s/he is a defendant in tort, the plaintiff is asking for roughly $40 million in compensatory and punitive damages, at least sixteen ‘non-conflicted’ judges are available and authorized by law to hear the matter, and the appeal is statutorily required to be heard by another court, which are the salient (and, judicially noticeable) facts of Smith v. Mullarkey, 121 P.3d 890 (Colo. 2005) (per curiam), cert. denied, 547 U.S. 1067 (U.S. Apr. 17, 2006) (No. 05-1055).

As I am sure you know, a judgment "rendered in violation of due process is void in the rendering state and not entitled to full faith and credit elsewhere." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980). The logical remedy is a federal lawsuit brought under a Carey v. Piphus (435 U.S. 247 (1978)) theory, as every litigant has a due process right to have his claims heard by a fair and independent tribunal. E.g., In re Murchison, 349 U.S. 133 (1955); Tumey v. Ohio, 273 U.S.510 (1927). And there is no judicial immunity, either in tort, see, Bradley v. Fisher, 80 U.S. 335 (1872), or with respect to criminal liability. Ex parte Virginia, 100 U.S. 339, 348 (1879).

Furthermore, the ersatz "judicial act" constitutes honest services mail fraud, as all litigants are entitled to the "honest, faithful, disinterested service [of] a public official." United States v. Mangiardi, 962 F. Supp. 49, 51 (M.D. Penn. 1997). You are asked as an AUSA to represent the justices. Do you have the right to mislead a judge into believing that this was a lawful act, when there is no existing authority for taking such a position?
6.17.2009 7:57pm
pluribus:
Thales:

Um, it's clearly *not* permissible to put witnesses on the stand that you *know* are perjuring themselves

Not permissible to put such a witness on the stand? Or just not permissible to help such a witness commit perjury? A defendant who is dishonestly claiming innocence can testify to many facts that are not perjurious. The ;attorney would not permit the client to testify even to true facts?

The key seems to me to be whether the attorney "knows" that the client is committing perjury. I have had many clients I strongly suspected were lying both to me and the court, but I did not "know" this to be the case, and by refusing to represent them, or to put them on the stand, I would be denying them an essential part of their right of representation. When I was beginning my practice, I had one client who told me that he was lying and that he intended to do so in court. I told him that he could do this, but that I would not be his attorney and facilitate his perjury. I withdrew from the case. Another attorney accepted it, and the client was acquitted after a jury trial. I wondered if the client made the same declaration to the subsequent attorney that he made to me.
6.17.2009 9:03pm
drunkdriver:
ha- just today, I filed an opposition where one of the mover's arguments was foreclosed by precedent.

I just said "it is correct that case X, cited by mover, says [blah]. What my opponent doesn't tell the Court is that case Y creates an exception for these facts." Will they beat me on this issue? Certainly not. Will the judge sanction them? Certainly not, and I didn't request that.

But they have better arguments against me, and I do hope the judge looks on them as a little less credible because of the one frivolous argument they made. My client's case is actually on the bubble, thanks to their good arguments. It's a surprise they wasted time on such a bad one. Every little bit I can get will help me.
6.17.2009 9:20pm
einhverfr (mail) (www):

A similar issue discussed a lot in the literature is the ethics of arguing false inferences (e.g. creating reasonable doubt about whether your client was at the scene when you know that he was but the other side can't prove it).


Well, I have no problem with that element. If the other side can't prove it, creating doubt has a basis both in fact (evidence presented) and in law (standard of proof) :-).
6.18.2009 12:02pm
Rowen Pearson (mail):
Here’s an interesting blog post at http://lawblog.legalmatch.com/ that changed my thoughts on this subject idea. I think before I read it I would’ve leaned more toward the practice suggested in the hypo to be unethical rather than ethical.

America’s legal system is an adversarial one and it can be argued, in that respect, representing one’s client to the best of that lawyer’s ability would be the best way to not only preserve the integrity of our country’s legal system, but to also utilize it in the exact way it was designed. From this perspective, an attorney’s best interest should always be to his or her client first. Even when an attorney knows their client is guilty, it’s still the attorney’s job to get their client off the hook. Therefore, it would follow that it would be ethical for an attorney to try and get admitted the inadmissible or object even when the attorney knows they’re in the wrong, and so forth.

However, I believe this is only correct to an extent. FRCP 1 says the rules “should be construed and administered to secure the just … determination of every action and proceeding.” Though the hypo posed elects to omit the rules for the sake of the question, I think it’s still important to look at the justice requirement of FRCP 1 to understand the ethical limits of such a practice. For example, the general public would probably agree that it isn’t fair to allow a murderer to go free due to improperly admitted evidence if the evidence clearly establishes the defendant’s guilt. Such an oversight would be an injustice to the family of the victim and would send a negative message to the public-at-large. Similarly, not allowing a new and inexperienced attorney who accidentally forgets to include all the parties who should’ve been charged in an action passed the 120 day limitation would probably be view as unfair, as well. In these circumstances, allowing the evidence to be admitted or the parties to be included would be ethical because it would be the best way to do justice to everyone involved.

But along these same lines, going back to the murderer scenario, the defendant’s attorney who attempts to hide or submit false or inadmissible evidence in order to protect his client would likely be viewed as clearly unethical by the public if the attorney absolutely knows of his client’s guilt. From this perspective, it would be unethical to allow an attorney to do such an action, both from the public’s view and the FRCP.

Ultimately due to the adversarial nature of America’s legal system, the question of what is admissible or allowable comes down to what the court decides is right. The court understands that attorneys are there to represent their client, though it is also expected of these attorneys to act ethically, in the end the notion of what is or isn’t ethical is not a clear cut one, but one for the court to judge is just. Therefore, I think it would be ethical for an attorney to attempt such “unethical” actions since it is a lawyer’s duty to represent their client and because it is our judicial system’s job to keep lawyers in check.
6.18.2009 12:35pm
pluribus:
Rowen Pearson:

I think it would be ethical for an attorney to attempt such “unethical” actions since it is a lawyer’s duty to represent their client and because it is our judicial system’s job to keep lawyers in check.


An interesting post, Rowen. My own take is that it is the attorney's duty to represent the client vigorously, insiting on all of the rights, privileges, defenses, and objections that are properly available to the client. Chief among these in criminal cases is the burden of proof. The prosecution must prove every element of the offense. The defense has no obligation to help the prosecution prove its case. I do not believe, however, that the defense attorney has a duty to "get the client off." If the result of vigorously insisting on all of the rights, privileges, defenses, and objections properly available to the client is acquittal, then the attorney has done his or her duty. If the result is some reduction of the charges, or a conviction, with leniency exercised in the sentence, or even an outright conviction with a severe sentence, then the attorney has also done his or her duty. The defense attorney does not have a duty to obtain an acquuittal, though that result may follow in particular cases.
6.18.2009 2:29pm
altysin (mail) (www):
I'd say it's certainly ethical to try to admit a document you know is inadmissible, because documents can be admitted by agreement regardless of whether it complies w/ the rules of evidence. If a lawyer fails to object, he's agreeing to admit your document. Nothing wrong with that.

Different answer on removal to federal court. Parties can't agree to confer jurisdiction on a court. So if the removal motion is without a legall defensible basis, then I'd say it shouldn't be filed even as a gambit.
6.18.2009 3:07pm
einhverfr (mail) (www):
Rowen Pearson wrote:


America’s legal system is an adversarial one and it can be argued, in that respect, representing one’s client to the best of that lawyer’s ability would be the best way to not only preserve the integrity of our country’s legal system, but to also utilize it in the exact way it was designed. From this perspective, an attorney’s best interest should always be to his or her client first. Even when an attorney knows their client is guilty, it’s still the attorney’s job to get their client off the hook. Therefore, it would follow that it would be ethical for an attorney to try and get admitted the inadmissible or object even when the attorney knows they’re in the wrong, and so forth.


I think that if one defines "in the wrong" sufficiently narrowly, then it IS unethical of an attourney to do actions which are in the wrong even if they further his client's cause.

The fundamental question is whether the action has a basis in law or fact. If an attorney objects arguing that something is prejudicial without a good faith argument that it is, then that is unethical. If the attorney objects with a weak argument made in good faith then that is OK. In the second case the lawyer may be "in the wrong" broadly speaking but is not "in the wrong" narrowly speaking.

Now, due to the adversarial nature of our system I am willing to give lawyers a LOT of slack, but there are limits. For example, a lawyer whose client admits to being guilty (only to the lawyer) might STILL argue that the evidence mustered by the government does not prove that his client did the crime beyond a reasonable doubt, though the lawyer would certainly not be ethically able to introduce evidence that he knows to be false (alibis etc). Inferences are not evidence.

However, where it comes to evidence, I think lawyers are ethically obligated to avoid steering from the gray area of "this might possibly be admissible and I have an argument that it is" (whether that argument is strong or not) into the black area where no good faith arguments can be made that the evidence is admissible.

Note that the gray area is very big. If you can make a good faith argument, then you are at least in the gray area. The only thing that would be unethical would be blatant violations of rules.

But now let's look at WHY this is unethical.... It isn't just a matter of playing by rules. The fact is that getting caught can involve leading a judge towards a reversible error. A lawyer who veers away from the territory where good faith arguments can be made is not only damaging the system but may damage his own client's cause. Therefore the lawyer should not go into this area. The gray area where different arguments might prevail is sufficient protection to ensure that those who have the best lawyers have an advantage.
6.19.2009 1:52am

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